This study was concerned with the effectiveness
of the monitoring process from 1975 up to 1998. In other words, if areas
of noncompliance were pointed out and plans of correction are implemented,
one would have expected improvement in the noncompliant area. In order
to determine whether or not improvements took place over time, NCD undertook
two analyses. First, we analyzed the current monitoring reports to determine
how frequently there were citations of previous areas of noncompliance
that had not been corrected. Second, we examined several monitoring
reports over a span of years in each of six states to determine the
extent to which areas of noncompliance were persistent. According to
one expert, "[t]he real test of a monitoring process is whether identified
deficiencies are corrected."[195]

a. Analysis
of Current Monitoring Reports

The most recent monitoring reports of
twelve states (24%) indicated continuing areas of noncompliance from
previous federal monitoring reports or other compliance-related OSEP
activities. The areas of continuing noncompliance were often
with requirements that were important to the educational careers of
students with disabilities.

"...[S]everal deficiencies identified
in OSEP's 1993 monitoring report do reappear in this Report. Specifically,
OSEP continued to find deficiencies in requirements related to ensuring
compliance through monitoring, approval of complete local educational
agency applications, the provision of a free appropriate public education,
and placement in the least restrictive environment."[196]

A "In a few instances [placement
in the least restrictive environment, provision of a free appropriate
public education, state educational agency monitoring, and complaint management]
this Report includes continuing findings that were first noted in the
1991 compliance report."[197]

B "OSEP noted ... that
many deficiencies identified during OSEP's previous monitoring in April
of 1989 continue to exist. Specifically, OSEP found serious deficiencies
in requirements related to ensuring compliance through monitoring, complaint
resolution, and due process hearings. OSEP also noted significant continuing
deficiencies related to placement in the least restrictive environment
.... Although the Report contains numerous findings in the nine areas
of responsibility..., OSEP notes that the seriousness of the findings
described above requires NYSED's [New York State Education Department's]
immediate attention.

OSEP is extremely concerned
about these continuing deficiencies, and notes that NYSED has
previously provided documentation to OSEP to verify that many of the
deficiencies had been corrected."[198]

C "...OSEP noted ... that
many deficiencies identified during OSEP's previous monitoring in March
of 1988 continue to exist. Specifically, OSEP found serious deficiencies
in requirements related to ensuring compliance through monitoring ...,
and ... found that NMSDE [New Mexico State Department of Education]
had not implemented revised monitoring procedures that were required and
approved by OSEP as part of the corrective action resulting from OSEP's
previous monitoring visit. In addition, similar deficiencies continued
in the areas of Individualized Education Program development...and a full
explanation of procedural safeguards to parents .... ...Although the Report
contains numerous findings in the five areas of responsibility..., OSEP
notes that the seriousness of the findings described above requires
NMSDE's immediate attention.

OSEP is concerned about these
continuing deficiencies, and notes that NMSDE has previously
provided documentation to OSEP to verify that many of the deficiencies
had been corrected. With respect to monitoring, OSEP had approved
NMSDE's development of a revised monitoring system that met federal
requirements on May 4, 1990, but now finds that NMSDE has not implemented
this corrective action required by OSEP...."[198a]

D "We are concerned
about the continuing existence of two findings of deficiency that
OSEP first identified in MDE's [Minnesota Department of Education]
1991 compliance report. First, MDE has not implemented a system to ensure
that deficiencies it identifies in Minnesota public agencies are corrected
in a timely manner. Although MDE had submitted approvable procedures for
ensuring correction of public agencies' deficiencies, OSEP finds that
MDE had not implemented these procedures. Second, OSEP finds that the
MDE routinely violates the federal time line for investigating and resolving
complaints. This deficiency was first identified in the 1991 compliance
report and continued to exist at the time of OSEP's September 1994 on-site
visit. I bring these two areas to your attention because of the serious
issue they raise with regard to MDE's ability to exercise general supervisory
authority to ensure that all public agencies in the state comply with
Part B."[198b]

E "OSEP found the following
five continuing deficiencies that were first identified in the 1991
Report and for which MASSDE [Massachusetts Department of Education]
previously provided documentation to OSEP to verify that the deficiencies
had been corrected:

MASSDE has not monitored to ensure
that deficiencies are identified in public agencies in Massachusetts
and are corrected in a timely manner. Although MASSDE submitted appropriate
procedures for identifying and ensuring correction of public agencies'
deficiencies, OSEP finds that MASSDE has not implemented these procedures.

MASSDE has not established procedures
to ensure that Part B funds are distributed to ... LEAs based on approved
applications from those LEAs.

MASSDE's procedures for investigating
and resolving complaints and conducting due process hearings have
not ensured resolution of either within the time lines prescribed
. . . .

MASSDE has not met its responsibility
to ensure that public agencies make placement decisions consistent
with the least restrictive environment requirements . . . .

MASSDE has not implemented procedures
which ensure that annual meetings are held to develop, review, and,
if necessary, revise all components in the student's IEP."[198c]

"MDOE [Maine Department of Education]
has not exercised its general supervisory authority, to fully correct
all of the deficiencies identified by OSEP in the 1994 Monitoring Report.
Specifically, although OSEP found these same deficiencies in the 1994
report, OSEP again found the following deficiencies:

(1) Eligible individuals incarcerated in
Maine state and local adult correctional facilities have not been located,
identified, evaluated, and provided with a free appropriate public education;

(2) Complaint management procedures do
not ensure that any complaint that a public agency has violated a requirement
of Part B is resolved . . .;

(3) . . .MDOE has not ensured that the
provision of a free appropriate public education is not delayed, interrupted,
or denied to children . . . ."[198d]

F "KDE [Kentucky
Department of Education] was cited in OSEP's 1992 monitoring Report
for failure to exercise general supervisory responsibility over Department
of Corrections educational programs for youth with disabilities, but
KDE has yet to provide or establish a system to ensure provision of
special education and related services to eligible youth in these facilities.
Consequently, KDE has failed to exercise its general supervisory responsibility
to implement procedures to ensure that these programs provide special
education and related services to youth with disabilities...as required
in OSEP's previous corrective action plan."[198e]

G "In December
1992, OSEP referred a complaint alleging Part B violations to ISBE [Illinois
State Board of Education] for resolution . . . ISBE informed
the complainants that their complaint was "untimely" and that ISBE
would not investigate it because '[ISBE's] complaint procedures
require that the violation must have occurred within 180 calendar days
of the date the complaint was filed with [ISBE].' In February 1993,
OSEP again referred the complaint to ISBE, stating that such a dismissal
'is not consistent with the complaint provisions applicable to [Part
B].' In March 1993, ISBE again declined to resolve the complaint,
citing the 180-day time limit; explaining that in establishing the 180-day
limitations period ISBE adopted the limitations period established by
the Office for Civil Rights for complaints filed with that office, and
enclosing 'a current copy of [ISBE's] internal procedures which include
the 180-day time limit.' In a September 6, 1994, letter, OSEP asked
ISBE to advise OSEP within 15 days whether ISBE's current procedures
included a time limitation, and--to the extent that ISBE's procedures
include any time limitation on the filing of complaints--the specific
steps that ISBE will take to revise its procedures, and the time lines
for those steps. On September 16, 1994, ISBE responded, stating that
it would "revisit" the time line; a further ISBE response of October
4, 1994, confirmed that it 'still set a 180 day time line.'

In preparation for the May 1995 monitoring
visit, OSEP requested from ISBE a copy of its procedures for resolving
complaints. . . . ISBE submitted to OSEP a copy of a document entitled,
"Investigation and Resolution of Complaints." Those procedures state
that, 'An EDGAR [Education Department General Administrative Regulations]
investigation is conducted only on current disputes. An investigation
will not be conducted on retrospective or prospective violations.'

Thus, despite clear OSEP directives
to ISBE over a more than two-year period that it must revise its complaint
resolution procedures to eliminate a time limitation on the filing of
Part B complaints, ISBE's procedures continue to exclude complaints
that are not 'current.'"[198f]

H "OSEP is particularly concerned with the persistence of serious problems in the area of
... least restrictive environment. This finding was cited both in
the 1993 monitoring report and in the October 1995 letter issued to
FLDE [Florida Department of Education] subsequent to OSEP's follow-up
visit to FLDE in March of 1995." [198g]

"OSEP noted in its development
of this report that some of the deficiencies identified during OSEP's
previous monitoring in February of 1989 continue to exist. Specifically,
OSEP found deficiencies in requirements related to ensuring compliance
through monitoring and implementation of placement in the least restrictive
environment. OSEP is concerned about these continuing deficiencies
and notes that CSDE [Connecticut State Department of Education]
had previously provided documentation and assurances to OSEP to verify
that the deficiencies had been corrected and recurrence had been prevented.
In this regard, CSDE must take immediate and forceful steps to correct
deficiencies throughout the state or risk the imposition of sanctions,
including the withholding of federal funds."[198h]

I "OSEP is particularly concerned that AKDE
[Alaska Department of Education] has not implemented procedures
to ensure that eligible persons with disabilities incarcerated in the
state's adult correctional facilities are provided a free appropriate
public education. This issue was cited as an area of noncompliance in
OSEP's 1994 monitoring report to AKDE, however, at the time of OSEP's
1996 monitoring, AKDE had taken no definitive action in this area."[198i]

As is clear from the cover letters and
reports quoted above, continuing noncompliance appeared in many cases
to be the result of an unwillingness on the part of SEAs to implement
corrective actions the SEA and OSEP had previously agreed upon,
or to follow clear OSEP directives. This finding may not be surprising
because OSEP apparently did not begin significant enforcement activities
as a result of discovering that these SEAs had not lived up to their
corrective action or other commitments.

b. Analysis of Six
States Over Time

i. Methodology and Limitations

All reports for a selected group of eleven
states, since the beginning of federal special education monitoring
efforts, were requested from OSEP.[198j] Unfortunately, OSEP did not
have a policy of retaining copies of all reports at the time the research
for this study was conducted: "...OSEP generally does not keep records
regarding IDEA monitoring activities for more than three to five years."[198k]
Neither did OSEP have an inventory of the reports that they did possess,
so it was not possible to pre-determine which states had the most complete
set of reports. California, Illinois, New York, Oregon, Texas, and Vermont
were ultimately chosen to be studied in depth because there appeared
to be a reasonable number of reports available going back in time.

Because OSEP did not consistently display
areas of compliance in its reports, as mentioned above, the resulting
limitations on this part of the current study were significant. Requirements
were chosen for analysis if the most recent report displayed a definite
compliance status for it, and if there was at least one earlier report
that displayed a definite compliance status for that requirement.[198l]
It was possible that when a report gave no information about a requirement
the state was compliant, that it was a "single cite" instance of noncompliance,
or that compliance with the requirement was not monitored at all. These
limitations should be kept in mind by the reader.

ii. Six States Over Time

According to OSEP, the six states studied
served 1,734,227 students with disabilities ages three to 21 under Part
B of IDEA during the 1995-96 school year.[198m] Hence, these states
served 30.9 percent of the total students served under Part B nationwide.

(a) California

Three monitoring reports from California
were analyzed: 1988, 1992, and 1996. As displayed in the following table,
and as qualified by the limitations affecting this study, California
came into compliance with only one of 10 requirements (10%) over time--the
requirement under general supervision, the review and approval of LEA
applications. Of the nine that remained noncompliant, seven remained
noncompliant for almost eight years, and two for four years.

Table 15: Noncompliance
Over Time in California

Requirement

4/6/88

2/11/92

2/5/96

FAPE: Related
Services

X

X

X

LRE: Education
with Nondisabled/Removal Only When Aids/Services Standard Met

X

X

X

LRE: Nonacademic
& Extracurricular

X

X

X

LRE: Placement
Based on IEP

X

X

X

General
Supervision: Review and Approval of LEA Applications

X

X

C

General
Supervision: Complaint Management: Resolved Within 60 Days

NI

X

X

General
Supervision: State Monitoring: Method to Determine Compliance

X

X

X

General
Supervision: State Monitoring: Effective Method for Identifying
Deficiencies

X

X

X

General
Supervision: State Monitoring: Correction of Deficiencies

X

NI

X

Procedural
Safeguards: Content of Notice

NI

X

X

Key to Tables: X--Noncompliant, C--Compliant,
NI--No Information

Although OSEP could not provide the 1980
report, California was apparently monitored in 1980 and 1985 also. At
a Congressional hearing, David Rostetter testified about these efforts:

"In November 1980 OSEP issued
a 56-page monitoring report to the state of California. It was clearly
the most rigorous effort at enforcement attempted up to that point.
Unfortunately, a presidential election resulted in an administration
that ordered OSEP to negotiate the findings and 'close out' the issues
immediately. Not surprisingly, these same deficiencies again were found
during the September 1985 on-site review of California. Prior to the
visit, the Deputy Assistant Secretary advised me to 'avoid making findings'
as a result of the California review. This 'advice' was never heeded. As of this date, the findings in the November 1980 letter remain
unaddressed. Since that time over half a billion dollars in federal
funds has been awarded to California in the presence of clear evidence
of noncompliance."[198n]

It is impossible to tell from the information
provided whether some of these requirements have been in noncompliance
since 1980.

(b) Illinois

The 1991 and 1996 Illinois monitoring reports
were analyzed. As displayed in the following table and as qualified
by the limitations affecting this study, Illinois came into compliance
with six of 14 requirements (43%) over time. The eight with which the
state remained noncompliant have been in this status for almost five
years.

Table 16: Noncompliance
Over Time in Illinois

Requirement

5/23/91

2/21/96

FAPE: Related
Services

X

X

FAPE: Provision
of Special Education/Program Options Available

X

X

LRE: Education
with Nondisabled/Removal Only When Aids/Services Standard Met

X

X

LRE: Nonacademic
& Extracurricular

X

X

LRE: Placement
Based on IEP

X

X

LRE: Continuum
Available to Extent Necessary

X

X

IEPs: Content

X

C

IEPs: Meetings

X

C

General
Supervision: Review and Approval of LEA Applications

X

C

General
Supervision: State Monitoring: Effective Method for Identifying
Deficiencies

X

C

General
Supervision: State Monitoring: Correction of Deficiencies

X

X

Procedural
Safeguards: Hearing Decisions Within 45 Days

X

X

Procedural
Safeguards: Content of Notice

X

C

Procedural
Safeguards: Establishment of Procedural Safeguards

X

C

(c) New York

Reports from 1983, 1990, 1994, and a follow-up
report from 1996 were analyzed for New York. As displayed in the following
table and as qualified by the limitations affecting this study,[198o]
in its most recent comprehensive monitoring report (8/16/94), New York
came into compliance with none of the 15 requirements (0%) with which
it had been previously noncompliant. Five of these requirements had
been noncompliant for more than 10 years, and 10 remained noncompliant
for more than four years. Of the 11 requirements with which the state
was found noncompliant in the follow-up report (9/10/96), two had been
noncompliant for more than 12 years, three for six years, and six for
two years.

Table 17: Noncompliance
Over Time in New York

Requirement

12/14/83

10/17/90

8/16/94

9/10/96*

FAPE: ESY

X

X

X

NI

FAPE: Provision
of Special Education/Program Options Available

NI

NI

X

X

LRE: Education
with Nondisabled/Removal Only When Aids/Services Standard Met

X

X

X

X

LRE: Nonacademic
& Extracurricular

NI

X

X

X

LRE: Continuum
Available to Extent Necessary

NI

X

X

X

IEPs: Content

X

X

X

NI

IEPs: Meetings

NI

X

X

NI

Transition:
Notice

NI

NI

X

X

Transition:
Statement of Needed Services

NI

NI

X

X

Transition:
Meeting Participants

NI

NI

X

X

General
Supervision: Incarcerated Students

NI

X

X

NI

General
Supervision: Review and Approval of LEA Applications

NI

X

X

NI

General
Supervision: Complaint Management: Resolved Within 60 Days

X

NI

X

X

General
Supervision: State Monitoring: Method to Determine Compliance

NI

X

X

NI

General
Supervision: State Monitoring: Effective Method for Identifying
Deficiencies

NI

X

X

NI

General
Supervision: State Monitoring: Correction of Deficiencies

NI

X

X

NI

Procedural
Safeguards: Hearing Decisions Within 45 Days

NI

NI

X

X

Procedural
Safeguards: Content of Notice

NI

X

X

X

Procedural
Safeguards: Prior Notice/Parent Consent

X

NI

X

NI

Procedural
Safeguards: Establishment of Procedural Safeguards

NI

X

X

NI

Protection
in Evaluation

NI

NI

X

X**

*Follow-up Report
**Report notes significant improvement

(d) Oregon

Reports from 1988, 1993, and 1998 were analyzed
for Oregon. As displayed in the following table and as qualified by
the limitations affecting this study, Oregon came into compliance with
six of 10 requirements (60%) over time. Of the four that remained noncompliant,
two had been noncompliant for more than nine years, and two for more
than four years.

Table 18: Noncompliance
Over Time in Oregon

Requirement

7/5/88

11/15/93

1/8/98

FAPE: ESY

NI

X

X

FAPE: Related
Services

NI

X

X

LRE

X

X

C

General
Supervision: Review and Approval of LEA Applications

X

X

C

General
Supervision: Complaint Management: Resolved Within 60 Days

NI

X

C

General
Supervision: Complaint Management: Resolve Any Complaint

X

NI

C

General
Supervision: State Monitoring: Effective Method for Identifying
Deficiencies

X

XI

X

General
Supervision: State Monitoring: Correction of Deficiencies

X

XI

X

Procedural
Safeguards: Hearing Decisions Within 45 Days

NI

XI

C

Protection
in Evaluation

NI

XI

C

(e) Texas

Reports from 1987, 1993, and 1997 were examined
for Texas. As displayed in the following table, and as qualified by
the limitations affecting this study, Texas came into compliance with
only two of nine requirements (22%) over time. Of the seven which remained
noncompliant, six remained noncompliant for more than 10 years, and
one for more than four years.

Table 19: Noncompliance Over
Time in Texas

Requirement

3/11/87

2/26/93

9/16/97

FAPE: Related
Services

NI

X

X

LRE: Education
with Nondisabled/Removal Only When Aids/Services Standard Met

X

X

X

LRE: Nonacademic
& Extracurricular

X

X

X

LRE: Placement
Based on IEP

X

X

X

LRE: Continuum
Available to Extent Necessary

X

X

X

General
Supervision: Review and Approval of LEA Applications

X

X

C

General
Supervision: State Monitoring: Effective Method for Identifying
Deficiencies

X

NI

X

General
Supervision: State Monitoring: Correction of Deficiencies

X

X

X

Procedural
Safeguards

X

X

C

(f) Vermont

Reports for 1989, 1993, and 1996 were analyzed
for Vermont. As displayed in the following table and as qualified by
the limitations affecting this study, Vermont came into compliance with
three of eight requirements (37.5%) over time. Of the five that remained
noncompliant, one remained noncompliant for seven years, and four for
more than two years.

Table 20: Noncompliance
Over Time in Vermont

Requirement

2/24/89

9/17/93

2/8/96

FAPE: Related
Services

NI

X

X

FAPE: Provision
of Special Education/Program Options Available

NI

X

X

IEPs: Content

X

X

X

General
Supervision: Incarcerated Students

NI

X

X

General
Supervision: Review and Approval of LEA Applications

X

X

C

General
Supervision: Complaint Management

NI

X

C

General
Supervision: State Monitoring: Correction of Deficiencies

NI

X

X

Protection
in Evaluation

NI

X

C

c. Findings
and Recommendations

Finding # III B.10Some significant state noncompliance areas have changed over time.
At the start of the federal monitoring process, large numbers of children
with disabilities were routinely and inappropriately placed in separate
educational settings in many states. Recent findings have shown that
while such routine inappropriate placements have decreased in many states,
a lack of adequate supports to children placed in regular classrooms
was still prevalent.

Finding # III B.11States frequently failed to ensure compliance with the same requirement
for years and for several rounds of monitoring.
Looking at the three most recent monitoring reports (ranging from 1983-1998)
for each of six states, they came into compliance as a group with only
18 of 66 noncompliant requirements (27%) identified in the first and/or
second of the three monitoring reports. For 48 (73%) of the 66 noncompliant
requirements found, either noncompliance was found again or no compliance
finding was reported at all in the third monitoring report.
Of the 18 requirements with which states came into compliance, 10 (56%)
had to do with the state's own administrative functioning (five-review
and approval of LEA applications; three-complaint management; one-hearing
decisions within time lines; and one-effectiveness of the monitoring
system at identifying noncompliance).

Recommendation # III B.11OSEP should strengthen compliance monitoring and enforcement by
recognizing states that are performing well, offering ongoing technical
assistance to states to correct noncompliance, and applying consequences
consistently when improvement objectives are not met.

Finding # III B.12The federal IDEA enforcement process has not provided clear and certain
consequences for failures to correct noncompliance that would motivate
the states toward compliance.
SEAs cannot be motivated to garner the will and the resources to come
into compliance when the record shows that sanctions rarely occur.

Recommendation # III B.12AThe Department of Education's approach to remedying state noncompliance
should link noncompliance findings with (1) measurable improvement objectives
to be met within a defined time frame, and (2) a range of specific enforcement
sanctions that will be incurred for failures to meet each of the improvement
objectives within the specified time frames.

Recommendation # III B.12BThe Department of Education, the Department of Justice, and the
Department of the Interior, with input from students with disabilities,
their parents, and other stakeholders, should develop a broad range
of sanctions linked to the failure to correct noncompliance within the
time frames agreed upon in the corrective action plans.A wider range of options is needed to allow more flexibility and
consistency in the enforcement of IDEA. These options should clearly
articulate the sanctions available with examples of circumstances in
which each would appropriately be applied.The following section briefly discusses the monitoring process as
it relates to the issues of under-served populations.

7.
OSEP Initiatives to Address Marginalization
Issues

OSEP had taken several initiatives over
the past decade to address noncompliance areas that particularly affect
youth with disabilities who, because they are members of minority communities,
living in state institutions, or served by state programs, have often
been marginalized. In response to consumer complaints and research about
the unavailability of services for eligible youth with disabilities
in adult and juvenile correctional facilities, OSEP had collected data
from SEAs to determine the extent to which states were exercising their
general supervisory responsibility for ensuring the provision of special
education and related services. When appropriate, OSEP also had conducted
on-site visits to correctional facilities as part of its monitoring
reviews.[198p] OSEP reported compliance improvements in this area, although
no data were provided to assess the extent of improvement.

OSEP has also conducted monitoring reviews
of the Bureau of Indian Affairs (BIA), where BIA functions as the SEA
for schools located on Native American reservations, and has worked
with BIA staff in providing training to OSEP monitoring staff regarding
American Indian culture. During the most recent (1998-99) monitoring
review of the BIA, OSEP visited reservations and interviewed parents
and advocates in Arizona, South Dakota, North Dakota, Utah, and New
Mexico. OSEP has worked closely with groups appointed by BIA as part
of the monitoring review process, including the newly created special
advisory board.[198q]

The Office for Civil Rights (OCR) has also
worked in collaboration with OSEP and independently to address inappropriate
placement of minority students. Since 1994, OCR has identified this
issue as a high priority item in DoED's enforcement program. From October
1993 through July 1999, OCR has addressed 413 cases involving inappropriate
placements of minority students in special education,[198r] including
162 complaint investigations and 251 compliance reviews, some of which
were statewide or citywide.[198s] OCR had undertaken these cases based
on its own concerns about possible noncompliance and believed significant
resolutions have been achieved, "which provided for positive change
for hundreds of thousands of students."[198t]

Resolutions cited as examples included
a strategy developed jointly with OSEP and the Mississippi Department
of Education to address inappropriate placement of minority students
and a Memorandum of Understanding (MOU) entered into by OCR and the
Board of Education of the City of New York and co-signed by OSEP to
address inappropriate referrals and placement of minority students in
special education. OCR was monitoring these agreements, and evaluating
how successfully the various measures had been implemented so as to
increase the effectiveness of its enforcement efforts.[198u] No data
demonstrating improved compliance based on measurable indicators were
provided for either of these states and may not yet have been available.

8.
Perspectives on the Impact of Federal
Compliance Monitoring

As part of our research, individuals who
had been involved directly and indirectly with federal compliance monitoring
at the state and local level were consulted. This section presents views
on federal compliance monitoring from two different organizational vantage
points.

a. The Consortium
of Citizens with Disabilities

The Consortium of Citizens with Disabilities
(CCD) is a coalition made up of more than a hundred national consumer,
advocacy, provider, and professional organizations working in Washington,
DC, on behalf of people with disabilities. For this study, NCD met with
members of the Civil Rights Task Force to gain their perspectives on
monitoring and enforcement of IDEA. They made several key points:

While the federal role is critical,
it is only part of the enforcement scheme.

Parents have been and still are the
main enforcement vehicle for IDEA; they carry too much of the burden.

Protection and advocacy systems across
the country and private litigation are crucial aspects of the overall
enforcement scheme of the law.

Monitoring reports have been useful,
for the most part; however, all states still fail to ensure compliance
with the law after more than 20 years of monitoring and enforcement.

With the enactment of IDEA '97, the
need for outreach training and technical assistance surpassed the
considerable resources OSEP dedicated to meeting it.

OSEP should use the clarified enforcement
authorities (partial withholding of funds and referral to the Department
of Justice) in IDEA '97.

b. The National Association of
State Directors of Special Education

The National Association of State Directors
of Special Education (NASDSE) is made up of those individuals responsible
for ensuring compliance with IDEA in their states. NASDSE generally believes
that compliance monitoring has absorbed considerable resources while producing
limited results. They noted,

"Legal compliance has absorbed
the resources and time of professionals, hampering substantive efforts
to improve programs. Compliance monitoring systems address little more
than minimal process requirements and have had limited impact on educational
quality. The need for transition from a system that focuses on the process
of educating students to one that focuses on performance and results
has been clearly recognized."[199]

In an interview for this study, Martha
Fields, Executive Director of NASDSE, noted that the tremendous amount
of resources that have gone into monitoring has produced little. She
noted that monitoring can only do so much and that, in her view, it
had been maximized as a strategy for improvement. She held that monitoring
represents the "IRS approach" and it runs counter to reform and improvement.
Monitoring and the issuance of the reports, she suggested, would be
more useful if they were done in the context of everything else that
is going on in the state and if they were considered in relation to
other matters/developments in the state, such as education reform. The
categories of monitoring problems over the years have been consistent,
she noted; however, the degree of the problems has lessened. She cited
LRE as an example.

States know that federal monitoring is
not going away, according to Fields. However, the states would like
to see it approached differently. Fields noted that states found the
implementation visits recently conducted by OSEP, intended to provide
states with information about the 1997 IDEA amendments, to be beneficial.
She also noted that states felt that they were working in partnership
with OSEP to correct problems.

NASDSE would like to see the monitoring
process driven by data. For example, the new law includes numerous new
data collection requirements. If states look carefully at their data
on achievement, dropout rates, and graduation rates and monitor those
data over time, they will be in a strong position to identify problems
and make changes. They could set realistic benchmarks and monitor their
progress toward them. Some states, such as New York, are moving in that
direction, according to Fields. It is important to be vigilant about
the results--graduation rates, participation in post-secondary education
rates, and employment rates--that are produced for students with disabilities,
she says. There is some research to indicate that certain inputs make
a difference in the kind of results achieved. For example, the better
the teacher is trained, the better the results for the student. We need
to be thinking about these inputs while keeping the spotlight on results,
she noted.

Fields held that OSEP needs an enforcement
philosophy and a strategy. Data would help to provide accountability
for monitoring and enforcement. Federal enforcement of IDEA should involve
withholding of funds, but it must be tied to a specific deficiency.
For example, a certain percentage of funds could be withheld that was
comparable to the nature of the infraction, but the nature of the infraction
must be well documented.[201]

c. Findings and Recommendations

The findings and recommendations below capture
themes from the dialogues described in this section.

Finding # III B.13Some state compliance monitoring systems are inadequate because of
a lack of staff, of resources, and of a systematic, coordinated approach
statewide.

Recommendation # III B.13OSEP should increase its monitoring of state monitoring systems,
offer targeted technical assistance to correct deficiencies, and enforce
when the state fails to take corrective action.

Finding # III B.14Compliance monitoring at both the state and federal levels is not
sufficiently data-driven, objective, or consistent, relying too little
on agreed upon indicators and measures of performance.

Recommendation # III B.14The Department of Education should maintain a priority on working
with the states to improve accountability for implementing IDEA through
effective data collection and analysis.OSEP should continue working with states to improve their compliance
monitoring and enforcement capabilities through data collection related
to key performance indicators and regular, thorough, and ongoing analysis
of the data. Without these activities, the extent and nature of reported
compliance problems cannot adequately be understood or corrected. Among
the reported problems that require continuous monitoring are the provision
of FAPE and related educational services to eligible youth with disabilities
in state and local detention and correctional systems as well as disproportionate
representation of minority students with disabilities in separate educational
settings and in the state child welfare and juvenile justice systems.

C. Oversight:
Complaint Handling

As noted earlier in this report, there is
no federal complaint mechanism for IDEA analogous to that for other
civil rights laws. Other civil rights laws, including the Americans
with Disabilities Act and Section 504 of the Rehabilitation Act, are
primarily enforced by complaint investigations. The complaint mechanisms
for these other civil rights laws require the individual who believes
he or she has experienced discrimination to file a complaint with the
federal agency that is responsible for enforcing the law; e.g., with
the Equal Employment Opportunity Commission if it is a potential violation
of the employment provisions (Title I) of the ADA. The designated enforcement
agency processes the complaint and assists the complainant in resolving
it.

The complaint mechanism for IDEA rests
at the state level. Every state is required to have a mechanism for
parents to file complaints and a process for resolving them. The Department
of Education, however, does receive complaints from parents, herein
called general complaints, which it refers back to the states. Prior
to 1999, the Secretarial Review process enabled a parent to appeal to
the Secretary after exhausting the state complaint process. However,
based on the recommendations of an Inspector General's report (discussed
below in subsection 2), the Secretarial Review process was eliminated
in the new regulation.

In addition to these two federal complaint
processes, the OCR in the Department of Education receives and processes
education complaints under Section 504 and under Title II of ADA. These
OCR complaints appear to also address IDEA issues. These three complaint
processes are considered in this section of the report.

1. General Complaints
About IDEA Received by OSEP

Until 1999, complaints received by the Office
of Special Education were considered in two categories: general complaints
and Secretarial Review complaints. The general complaints came from
someone in a state, most frequently a parent. Because IDEA did not provide
a complaint process at the federal level, OSEP referred these complaints
back to the states for processing and notified the complainant. OSEP
also may have contacted the complainant to explain the options available
to him or her, if it was clear that the complainant did not understand
requirements of the law. Copies of the complaints were provided to the
leaders of the monitoring teams for the state involved.[202]

During 1995, OSEP received 288 general
complaints; during 1996, 348 such complaints; and during 1997, 377 such
complaints.[203] California was the subject of the most complaints of
any state or territory for a year: 58 complaints in 1997. Some states
had no complaints filed about them.

For this study, a sample of data about
the complaints was requested, in order to analyze the issues they raised.
OSEP provided data on complaints from California, Illinois, New York,
and Texas. Unfortunately, the coding system for the complaints did not
allow for issue analysis. Complaints were coded with general terms such
as "child complaint" and "special education compliance complaint." It
appeared that any issue analysis would require reading each complaint,
which was beyond the scope of this study. The 24 New York complaints
for 1996 were examined to determine the total processing time. Of the
24, six took one month or less to close; 10 took one to five months;
three took five to six months; and five did not include enough information
to determine the time line. Considering that OSEP's procedure was to
refer the complaint back to the state for processing, it was noteworthy
that more than half of the complaints took over a month for such referral.

2. Secretarial Review
of IDEA Complaints

In March 1999, the Department of Education
issued final IDEA '97 regulations eliminating the Secretarial Review
process. This elimination was recommended by an Inspector General's
report described below. Up until March 1999, the following process was
used for Secretarial Review of IDEA complaints: (1) Individuals who
were dissatisfied with a state's final decision in regard to a state
complaint could complain to the federal Department of Education. These
complaints were referred to as "Secretarial Review." (2) To initiate
a Secretarial Review request, a complainant had to send OSEP a copy
of the SEA's final decision on the complaint; a copy of the complaint
filed with the SEA that resulted in the final decision; and a letter
outlining the specific aspect of the decision that the requester challenged,
the basis for the challenge, and the relief sought. (3) OSEP and OGC
work collaboratively to determine whether to grant the review, remand
the request back to the state, or deny the review.

In 1995, OSEP received 70 requests for
Secretarial Review; in 1996, they received 103 requests; and in 1997,
51 requests. In August 1997, the Inspector General of the U.S. Department
of Education issued an audit report titled "Secretarial Review Process
In Need of Change."[204] The report concluded that the Secretarial Review
process should be eliminated for the following reasons. First, few complaints
addressed systemic issues. During the period of March 17, 1995, to February
11, 1997, only two of 15 complaints "granted" Secretarial Review requests
addressed systemic issues. Most were individual complaints seeking individual
remedies, and the Inspector General felt that DoED's energies are better
spent on systemic compliance, in activities such as monitoring.

Second, the process was seen as providing
minimal benefits to the complainants. DoED granted Secretarial Review
to a small percentage of requests. In a period of almost two years,
determinations providing remedies to the complainants occurred in only
12 cases. In five of the 12 cases, the child with a disability did not
actually receive any benefit because she or he was no longer enrolled
in the school that was the subject of the complaint.

Third, requests for Secretarial Reviews
were not processed in a timely fashion, according to the report. It
routinely took DoED over a year to process a request. Of the nine "granted"
requests in 1995, the letter of determination was issued in less than
one year in only two cases.

Finally, DoED was seen as being in a weak
position to decide cases and to decide them in a timely fashion. Because
DoED was totally dependent upon the clarity and accuracy of written
information provided by the participants, officials had to make numerous
inquiries of participants. When participants did not agree on the events,
DoED usually denied the request.

Although a data sample from Secretarial
Review requests was sought in order to analyze the issues raised, not
enough detail was retained in the record-keeping system to draw any
conclusions about the issues.

The Inspector General's audit, however,
which examined the Secretarial Review from a process perspective, offered
the following recommendations: (1) OSERS should work with state education
officials, advocacy groups, and others to identify best practices from
the state complaint process and develop guidelines to assist states
in improving state complaint processes. Performance measures should
be developed to evaluate the effectiveness of the state complaint processes.
(2) OSEP's monitoring process should be enhanced with a particular emphasis
on state complaint processes. (3) Over time, OSEP should evaluate the
effectiveness of the reforms states have instituted for their complaint
processes, identify states with poor complaint processes, and ensure
corrective action. (4) OSERS should take steps to eliminate the Secretarial
Review process.

In the proposed regulations issued on October
22, 1997, OSERS eliminated the provision that establishes the Secretarial
Review process.[205] In the discussion prior to the regulations, OSERS
cited the Inspector General's recommendation and notes that the removal
of the Secretarial Review provision "will allow the Department to spend
more of its time and attention on evaluating states' systems for ensuring
compliance with program requirements, which will have benefit for all
parties interested in special education."[206] OSEP reports that at
the present time, they still lack the necessary resources to conduct
such evaluations.[207]

The final IDEA regulations, issued March
12, 1999, delete the provision for Secretarial Review. DoED notes that
it implements the Inspector General's recommendations in the new regulations
by adding provisions that address state complaint procedures.[208] Those
provisions include a requirement that states notify parents of the state
complaint system and how to use it as a part of the procedural safeguards
notice.[209] In responding to the recommendations of the Inspector General's
report, advocacy groups raised a concern that the elimination of the
Secretarial Review process would leave parents of disabled children
no options to appeal final SEA decisions other than the costly due process
system or the courts. They recommended that the Secretarial Review process
not be eliminated until another system was in its place. They cited
the poor condition of many state complaint processes as a major concern.
The loss of a federal appeals process to the state complaint process
was problematic for them.[210]

3. Section 504/ADA Complaints
Received by OCR/DoED

While the Department of Education Office
for Civil Rights has no direct responsibility for monitoring IDEA or
investigating IDEA complaints, it does have responsibility for enforcing
Section 504 and Title II of ADA as they relate to education. OCR appears
to be receiving a large number of complaints that may also be complaints
under IDEA, and processing a significant number of complaints alleging
multiple violations, sometimes under more than one law. OCR must respond
to any allegations addressing Section 504 or ADA provisions, while allegations
alleging violations under IDEA are forwarded to OSEP, which in turn
sends them back to the states for processing. If a complaint contains
an allegation under IDEA and either an ADA or Section 504 allegation,
OCR's resolution probably will address the IDEA allegation. From the
data provided by OCR, it could not be determined how many of the complaints
contained IDEA allegations or how these were handled.

From early 1993 through May 4, 1998, OCR
received 5,684 complaints under 504 or ADA, or both, in which the respondent
was a primary or secondary school and which could also have been complaints
under IDEA. Appendix I provides three tables addressing the number of
IDEA-relevant complaints received during this period and discusses in
detail the issues raised by these complaints, the types of disabilities
experienced by those making the complaints, and the general resolution
of the complaints. The 5,684 complaints against elementary and secondary
schools represented 72.3 percent of all the individual complaints OCR
received under ADA Title II.

These complaints cited issues that may
have been IDEA issues. The vagueness of the complaint categories made
it impossible to determine definitively how many complaints actually
contained allegations of violations under IDEA. For example, almost
42 percent of the issues were related to "admission to education program."
Some of these complaints could have been related to IDEA students not
being admitted to the program they believed most appropriate for them.
Almost 20 percent of the complaints were classified as "program service."
These could have been situations where students with disabilities who
were served under IDEA were not receiving the services they need. Twenty-two
percent of the complaints were classified as "student/beneficiary treatments."
Some complaints under this category may have related to IDEA students
not receiving needed services.

The largest disability category among the
5,684 complaints was learning disability, at almost 19 percent. This
is also the largest disability category of students served under IDEA.
Children with hearing problems, mental illness, mental retardation,
orthopedic impairments, attention deficit disorder, and speech impairments
are all complainants under ADA/504. Children with these disabilities
are also served under IDEA.

Historically, many have believed that Title
II ADA/504 K-12 education-related complaints primarily address physical
access to public and private schools; for example, ensuring that schools
have ramps so people using wheelchairs can use them to enter the school.
These data indicated that almost half of those filing Title II ADA/504
K-12 education-related complaints had cognitive or mental impairments,
including learning disabilities, mental illness, mental retardation,
attention deficit disorder, and attention deficit and hyperactivity
disorder.

It is also interesting to note that complaints
from students of higher education age appear to be a relatively small
proportion of complaints that the OCR in the Department of Education
receives. They could account for no more than 27 percent of the total,
because about 73 percent are related to elementary and secondary schools.

4. Findings
and Recommendations

Finding # III C.1There is no federal complaint process for IDEA to complement and
expand the scope of complaint-handling systems at the state level.
There is a need for a federal complaint handling system to provide students
with disabilities and their parents a vehicle for filing and resolving
complaints alleging widespread or systemic violations occurring at the
SEA or LEA levels. Because state complaint handling systems are largely
geared to addressing individual complaints, such a federal process would
help to close an existing gap in the enforcement infrastructure.

Recommendation # III C.1AWhenever Congress and the President approve an increase in the
funding to be distributed to local schools under Part B of IDEA, Congress
and the President should appropriate at the same time an amount equal
to 10 percent of the total increase in Part B funding to build the Department
of Education's and Department of Justice's enforcement infrastructure
to help drive improvements in state compliance and better results for
children. Priorities for use of these funds should include a federal
process for handling specific categories of IDEA complaints and the
expansion of technical assistance for improving state complaint handling,
monitoring, and enforcement systems.

Recommendation # III C.1BCongress should amend IDEA to create a complaint handling process
at the federal level to address systemic violations occurring in SEAs
or LEAs.Congress should designate the Department of Justice to administer
the process and allocate adequate funding to enable that Department
to take on this new role. This new federal complaint process should
be designed to complement, not supplant, state-level complaint-handling
and due process procedures. The federal process should be simple to
use and easy to understand by parents and students. The Department of
Justice should develop and disseminate explicit criteria for the types
of complaints alleging systemic violations it will prioritize given
its limited resources.

Finding # III C.2Information about IDEA complaints filed with state complaint systems
is often limited.

The only complaint process for IDEA is
at the state level. Information and analyses about the nature and outcome
of state complaints are not readily available to complainants or other
stakeholders at the state level and are not nationally compiled on a
state-by-state basis.

Recommendation # III C.2The Secretary of Education should require states to submit annually
a summary analysis of all state complaints alleging violations of IDEA,
including a listing of complaints received by category and by LEA, with
a brief description of the allegations, opening and closing dates, and
type of resolution.Under IDEA, the Secretary of Education may require the states to
submit any data deemed necessary to administer the law.[211] These analyses
should inform OSEP's monitoring, compliance and enforcement activities,
as well as OSEP's technical assistance efforts and those of its technical
assistance grantees. This information should be shared with OCR and
the Department of Justice. It should be widely disseminated to stakeholders
in the state.

Finding # III C.3State complaint systems under IDEA need improvement.
According to the Inspector General's report, state complaint systems
should be improved and more intensely monitored by OSEP. While the IDEA
'97 regulations intended to improve state complaint systems, OSEP has
lacked the necessary resources to conduct such evaluations.

Recommendation # III C.3OSERS should work intensively with states to improve state complaint
systems.OSERS should identify model practices in states and proactively provide
technical assistance for improvement of systems in states to include
development of a statewide mechanism for tracking all complaints and
capturing basic information about each complaint such as nature of complaint,
time line for resolution, outcome, and satisfaction of complainant with
outcome. OSEP should monitor the adequacy of state complaint systems
to produce accurate accounting of all complaints filed and data sufficient
to analyze the effectiveness of complaint handling throughout the state.

The next section examines the range of
enforcement actions available under IDEA and their application.

D. Enforcement

1. Restrictions on
Grant Awards: High-Risk Status with Special Conditions and Compliance
Agreements

In situations where states have demonstrated
persistent failure to ensure compliance with IDEA, DoED may award their
funds under "high-risk status with special conditions,"[212] or in accordance
with compliance agreements.[213] "High-risk status with special conditions"
is used when OSEP has determined that compliance can be achieved within
a relatively short period of time.

Compliance agreements are used when OSEP
has determined that it is likely to take a relatively long period of
time for the state or entity to come into compliance.[214] According
to DoED, as Table 21 below notes, one or both actions have been taken
with five states/entities in relation to IDEA Part B: Puerto Rico, California,
Virgin Islands, Pennsylvania, and the District of Columbia.[215] After
the major research for this report was completed, DoED awarded funds
in 1999 to New Jersey and again to Pennsylvania under special conditions.
Funds have not yet been awarded to the Virgin Islands, and a compliance
agreement has not yet been signed.[216]

Compliance Agreement under Part
B for FY '93-'96; Special Conditions under Part B for FY '96-FY
'98 for lack of compliance in evaluation, re-evaluation, and related
services.

California

Special Conditions in FY '97 and
FY '98 regarding services to students in adult correctional facilities.

Virgin Islands

Special Conditions on Part B beginning
in FY '98 for related services, personnel, re-evaluations, least
restrictive environment, transition statements in IEPs, length
of school day; Compliance Agreement negotiated and planned to
become effective in late 1999 or in 2000.

Pennsylvania

Special Conditions on Part B award
for FY '98 and FY '99 for failure to take enforcement steps against
LEAs that are out of compliance.

District of Columbia

Compliance Agreement under Part
B for FY '97, FY '98 and FY '99 for lack of compliance in related
services, timely evaluations and re-evaluations, and hearing time
lines.

New Jersey

Special Conditions for FY '99 for
continuing lack of compliance in some areas under Part B; terms
of special conditions incorporate New Jersey's own corrective
action plan.

In a 1991 monitoring report, OSEP found
that Puerto Rico failed to ensure compliance with IDEA in a number of
significant ways. There were lengthy, widespread delays in initial evaluations,
re-evaluations, and the provision of needed related services. Given
the magnitude of these delays and the fundamental infrastructure and
legislative changes that would be needed to correct them, it was determined
that the Puerto Rico Department of Education (PRDE) would need more
than a year to complete correction. Following a public hearing, OSEP
and the PRDE entered into a compliance agreement that set forth specific
requirements for incremental correction and reporting. During the three-year
term of the agreement, PRDE corrected the delays in initial evaluations
and many re-evaluations and made substantial progress in correcting
the delays in related services. In 1996, the compliance agreement was
concluded; however, full compliance with re-evaluation requirements
and related services was still lacking. At that point OSEP designated
Puerto Rico as a high-risk grantee and special conditions were applied
to the Part B grant until the corrections were completed. The special
conditions involved implementing the corrective action plan, collection
of data, and regular reporting on progress to OSEP. In the spring of
1998, OSEP determined that PRDE was no longer a high-risk grantee. It
is interesting to note that from 1993-1996, during the period that PRDE
was under a compliance agreement, they also had a fully approved state
plan (see Table 2 and Part IV above).

The 1993 monitoring report found that the
Virgin Islands Department of Education (VIDE) had failed to provide
(1) needed related services set forth on IEPs, (2) personnel in needed
service areas, and (3) timely triennial re-evaluations. In the 1998
monitoring report, OSEP found that VIDE had not corrected these areas
of noncompliance. In addition, OSEP held that VIDE had not ensured that
(1) students with disabilities were served in the least restrictive
environment, (2) that the IEPs for students 16 years of age or older
included transition services, and (3) that students with disabilities
were meeting SEA standards regarding length of school day. In addition,
OCR determined that VIDE is not in full compliance with Section 504
of the Rehabilitation Act or Title II of ADA in relation to a free appropriate
public education and accessibility of public education programs and
buildings. The FY '98 award designated VIDE a high-risk grantee with
special conditions and included the steps that VIDE was required to
take to ensure that it fully complies with Part B. Monthly reports detailing
progress are required and grants are made on a quarterly installment
basis provided VIDE has complied substantially with the relevant conditions.[218]
OSEP is currently developing a compliance agreement with the Virgin
Islands.

In a 1998 follow-up monitoring visit
to Pennsylvania, OSEP found that the Pennsylvania Department
of Education (PDE) had not taken enforcement action against a school
district although the district had failed to make timely corrective
action to address deficiencies identified by PDE and OSEP in previous
monitoring reviews. OSEP imposed special conditions on Pennsylvania's
FY '98 Part B grant because of this failure to exercise general supervision
authority and utilize enforcement to secure compliance with IDEA. The
special conditions require Pennsylvania to submit quarterly reports
to OSEP to document (1) the steps PDE has taken to ensure that the identified
LEA fully complies with Part B, including that PDE has taken enforcement
actions against the LEA where the LEA has failed to complete corrective
actions in a timely manner, and (2) the steps PDE has taken to ensure
that corrective action is taken by other public agencies for which PDE
identifies deficiencies in meeting Part B requirements, including appropriate
enforcement actions against those agencies.[219]

The 1994 monitoring report found the
District of Columbia Public Schools (DCPS) failed to ensure compliance
in related services, least restrictive environment, evaluations, and
due process time lines. A 1995 follow-up report determined that
significant problems remained with regard to least restrictive environment,
related services, and evaluations every three years. A compliance agreement
was drawn up between OSEP and DCPS for three years so that DCPS could
come into compliance with Part B requirements. The agreement includes
a schedule for reducing the number of children with disabilities who
have not received evaluations, re-evaluations, and related services
to which they are entitled; reducing the number of hearing decisions
that have not been issued within the 45-day time line; and reducing
the number of decisions that have not been implemented. DCPS must follow
certain data collection and reporting procedures. As of March 1999,
DCPS has met few goals set out in the compliance agreement.[220] At
the time research for this report was completed, DoED had not yet taken
any stronger enforcement action against DCPS (e,g., withholding of federal
funding or referral to the Department of Justice).

2. Withholding of
Funds

If a state persists in noncompliance,
DoED may exercise its authority to withhold funding from the state.
When the Secretary determines that "there has been a failure by the
state to comply substantially with any provision of this part [Part
B]," the Secretary shall withhold further payments to the state.[221]

IDEA '97 states that the Secretary shall
not make a final determination of ineligibility until she or he provides
a state with reasonable notice and an opportunity for a hearing. If
the SEA is dissatisfied with the Secretary's final action after a proceeding,
the agency may file for a review with the U.S. Court of Appeals for
the circuit in which the state is located. A copy of the petition must
be transmitted to the Secretary, who must file the record of the proceedings
on which the actions were based. The Court may remand the case back
to the Secretary for further evidence, and the Secretary may make new
or modified findings of fact that may modify the previous action. The
Court of Appeals has the authority to affirm the Secretary's action
or to set it aside, in whole or in part. The Supreme Court may review
the court's judgment.[222]

The 1997 IDEA amendments clarified the
withholding of funds provision in the law. Prior to the amendments,
the law indicated that the Secretary could "withhold any further payments"
from noncompliant states. The amendments included language specifying
that the Secretary could withhold funds "in whole or in part" from the
state.[223] The law further clarified that the Secretary may determine
that the withholding be limited to programs or projects or portions
of those programs or projects affected by the failure. The Secretary
may further determine that the SEA shall not make further payments to
specific LEAs or state agencies affected by the failure. Payments to
states may be withheld in whole or in part until the Secretary is satisfied
that there is no longer any failure to comply with the provisions of
Part B. No action has yet been taken utilizing this new withholding
provision, nor has DoED provided any guidance or further articulation
as to how partial withholding will be implemented.

To date, a determination of noncompliance
resulting in a decision to withhold funding has occurred only once,
with the state of Virginia. As a result of a complaint and follow-up
correspondence with the state, OSEP became aware in 1993 that the Virginia
Department of Education (VADOE) was not requiring LEAs to provide educational
services to children with disabilities who had been suspended long-term
or expelled from school. OSEP asked Virginia to revise its regulations
related to the provision of services to students who were on long-term
suspension or expulsion in order to receive funds for FY '94. Virginia
refused to change its practice to correct the problem, and DoED
proposed disapproval of the 1993-95 state plan and found VADOE ineligible
for FY '94 funding. DoED offered VADOE an administrative hearing on
the issue. VADOE, however, sought emergency relief in the Fourth Circuit,
which in April 1994 ordered DoED to release FY '94 funding to VADOE
and provide VADOE an administrative hearing before withholding future
funds. The administrative hearing was conducted in October 1994, and
in April 1995 the hearing officer found that IDEA requires the provision
of a free appropriate public education to all children with disabilities,
including those on long-term suspension or expulsion for behavior not
related to their disabilities. That decision was upheld by the Secretary
in July 1995 and affirmed by the Fourth Circuit in June 1996.

VADOE then sought a rehearing, and in February
1997, the Fourth Circuit reversed its prior position and held that IDEA,
as then in effect, did not require the provision of educational services
to children with disabilities who are suspended or expelled for behavior
not related to their disabilities. The IDEA Amendments Act of 1997 addressed
this issue by clarifying that the obligation to provide a free appropriate
public education to all children with disabilities includes children
with disabilities who have been suspended or expelled from school.[224]

3. Cease and
Desist Order

Under the General Education Provisions Act,
the Secretary may issue a complaint with a notice of hearing to a state
describing the factual and legal basis for his or her belief that the
state has failed to comply substantially with a requirement of the law.[225]
The final agency action is a report and order of an Administrative Law
Judge's (ALJ) requiring the state to cease and desist from the practice,
policy, or procedure that resulted in the violation. DoED may enforce
the final order by withholding any portion of the state's grant award
or by certifying the facts to the Attorney General, who may bring an
appropriate action for enforcement. The state may request judicial review
of the final order by the appropriate U.S. Court of Appeals.[226]

The Department has never used this option
to enforce IDEA.

4. Referral to the Department
of Justice for Enforcement Action

The 1997 IDEA amendments clarified that
the Department of Education could refer a state to the Department of
Justice for enforcement action after determining that there has been
a failure to substantially comply with any provision of IDEA, or "to
comply with the terms of any agreement to achieve compliance with [IDEA]
within the time line specified in the agreement." While some believe
the Department of Education has always had this authority, it was explicitly
included in IDEA for the first time in 1997. The regulations for IDEA
'97 do not, however, provide criteria for determining when such a referral
would be made. The Department of Education has never referred a state
or entity to the Department of Justice for enforcement action due to
noncompliance with IDEA.

5. The Politics of
Enforcement

In at least two instances when the Department
of Education took enforcement actions against states, it was met with
political resistance (see letters in Appendix D). In the case of
Virginia, when DoED withheld funds because the state failed to ensure
compliance with IDEA, the Secretary received multiple letters from members
of the Virginia Congressional delegation as well as a plea from the
governor of Virginia to release the funds. In his letter, Governor Allen
noted, "The President has expressed a desire to relieve the states of
unnecessary and excessive federal mandates. We are heartened by that
timely expression and look forward to your beneficial intervention in
this matter."[227] A letter from the Virginia Congressional delegation
noted, "Clearly, it is unfair to hold all children with special education
needs in the Commonwealth hostage to a disagreement over policy interpretation."[228]
Secretary Riley persisted with the enforcement actions and did not retreat.

When the Department of Education placed
Pennsylvania on "high-risk" status, Secretary Riley received a letter
from four members of the Pennsylvania Congressional delegation questioning
his decision (see Appendix D). The September 2, 1998, letter, from Rep.
Goodling, Rep. Gekas, Sen. Specter, and Sen. Santorum, notes that the
members are "deeply concerned" over DoED's decision to impose sanctions
on Pennsylvania. They state that it appears that DoED is moving toward
threatening to deny the more than $139 million the state receives under
Part B of IDEA. The members urge DoED to pursue "a more constructive
approach to ensuring compliance with . . . IDEA." The letter goes on
to question DoED's insistence that the Pennsylvania Department of Education
deny funding to the Harrisburg School District. Such an action would
only hurt children, they note. (DoED did not rescind its designation
of Pennsylvania as a "high-risk" state with sanctions). Despite the
fact that Secretary Riley did not retreat, such responses from politicians
may have a chilling effect on future enforcement efforts. In addition,
they may at least partially explain why so little enforcement has taken
place in the past 25 years. That lack of effective implementation was
so much at the heart of deliberations during the1997 IDEA reauthorization
was ironic, given the resistance by members of Congress to the Virginia
and Pennsylvania enforcement actions. Their public resistance indicated
a lack of Congressional awareness about the pervasive and persistent
noncompliance with IDEA across the country.

6. Findings
and Recommendations

Finding # III D.1The Department of Education has identified six enforcement actions
it has taken against states for noncompliance with IDEA Part B, all
within the past six years.
According to information provided by the Department of Education, only
six enforcement actions have been taken under IDEA Part B since its
enactment. Five of these enforcement actions were related to attaching
special conditions to the grant award or developing compliance agreements.
The other was an attempt to withhold funds from a state, which was overruled
by the court. All have occurred since 1993.

Recommendation # III D.1The Department of Education and the Department of Justice, with
input from students with disabilities, their parents, and other stakeholders,
should develop objective criteria for utilizing compliance agreements
and special conditions as enforcement actions.These criteria should be based on certain outcomes of the monitoring
process. For example, if a state fails to ensure compliance with a particular
requirement for a certain period of time, after the provision of technical
assistance and an opportunity for correction, it would immediately be
required to develop a compliance plan. If such a plan were not fully
implemented by a certain date, a greater sanction would be prescribed.
(See discussion under Part VII about new approaches to monitoring in
state systems.)

Finding # III D.2The Department of Education has withheld federal funds from a state
because of noncompliance with Part B of IDEA only once in the past 25
years.
In 1994, DoED briefly withheld funds from the Commonwealth of Virginia
due to a state policy that denied any services to special education
students who were suspended or expelled from school. Although DoED lost
its case against Virginia, IDEA was subsequently amended to clarify
that the Virginia policy was illegal. The 1997 amendments to IDEA also
explicitly gave DoED the authority to withhold a partial amounts of
funds.

Recommendation # III D.2The Department of Education and the Department of Justice, with
input from students with disabilities, their parents, and other stakeholders,
should develop a broad range of options for withholding partial funds
from noncompliant states and the criteria (triggers) for when they will
be used.Consideration for how partial withholding of funds could be utilized
might include the notion of withholding state administrative funds for
a state that fails to ensure compliance with state monitoring requirements
and utilizing those funds to hire an independent entity to conduct state
monitoring. Again, withholding of funds should never be a surprise to
anyone. Rather, it should be the predictable result of certain behavior.

Finding # III D.3Political resistance to IDEA enforcement from Congressional delegations
and state administrations of the noncompliant state may have a chilling
effect on enforcement.
DoED enforcement actions in Pennsylvania and Virginia resulted in letters
from members of Congress and the Governor of Virginia requesting that
the Secretary rescind the actions. The Secretary did not rescind either
action. In some instances, the members who wrote questioning and protesting
the DoED's actions had key roles in overseeing DoED's funding or programs,
particularly with respect to IDEA. Such political resistance may cause
DoED to be hesitant in pursuing enforcement, which would impact future
enforcement efforts.

Recommendation # III D.3AThe Department of Education should take the lead in educating
both the Congress and state legislators about the failure of states
to ensure compliance with IDEA and how this affects children with disabilities
and their families.The Department of Education should exercise its leadership as enforcer
of IDEA to educate federal, state, and local legislators about the extent
to which the law has not been fully implemented and the toll on children
with disabilities, their families, and their communities. Specifically,
DoED should brief the members of each state delegation before its planned
monitoring visits to discuss the technical assistance resources available
to states in correcting compliance problems, enforcement options, and
the long-term consequences of persistent noncompliance for children
with disabilities. The Department should urge legislators to take responsibility
for helping their states achieve compliance.The Department of Education should also be proactive in implementing
a well-timed and coordinated communication strategy for each planned
enforcement action it takes and in fostering dialogue about the issues.
The strategy should include media outreach and briefings targeted to
stakeholders and other interested parties, including federal, state,
and local officials, parent groups, and others.

Recommendation # III D.3BThe Department of Education should post any letters it receives
from members of Congress questioning enforcement actions related to
IDEA on the DoED web site and distribute them to Parent Training and
Information centers, Protection and Advocacy systems, and other legal
advocacy organizations.Such inquiries by members of Congress provide opportunities for parents
and their advocates to educate Congress about IDEA noncompliance in
their state and the toll it takes on their constituents.

Finding # III D.4AThe Department of Education has not yet provided policy guidance
regarding criteria for referral to the Department of Justice, authorized
by the 1997 amendments to IDEA.
While new regulations provide some information on the process of referral
to the Department of Justice, they do not clarify the criteria for making
such a referral.

Finding # III D.4BThe Department of Education has never referred a state to the Department
of Justice for substantial noncompliance with IDEA.
Authority for the Department of Education to make such referrals was
made explicit in the 1997 IDEA Reauthorization.

Recommendation # III D.4The Department of Education and the Department of Justice, with
input from students with disabilities, their parents, and other stakeholders,
should develop objective measures for determining "substantial noncompliance,"
the point at which a state will be referred to the Department of Justice
for legal action.

Part IV presents findings from the Department
of Education's Annual Reports to Congress between 1978 and 1998 and
analyzes these findings for a historical view of the implementation
IDEA.